People ex rel. Gross v. Fitch

43 N.Y.S. 442, 14 A.D. 630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1897
• Status: Published

Opinion

PER CURIAM.

We think, upon the facts appearing at the special term, that it was error to issue a peremptory writ of mandamus. The city concedes the possession of a sum of money which the relator claims as assignee of one James A. Striker. This same sum of money, however, is claimed by said Striker (he claiming that the assignment by his attorney to the relator was invalid), and also by one Elsworth L. Striker. It is perfectly apparent that there is here presented a serious dispute between different claimants for the same fund, and we do not think that, upon this proceeding, the relator has shown such a clear legal right to the money in the hands of the comptroller as would justify a peremptory writ of mandamus. We think the proper course would be for an action to be brought for the money, in which the claims could be inter-pleaded, and the money paid into court, where, upon the trial, such, a judgment could be entered as would protect all parties.

The order appealed from should, therefore, be reversed, with costs and disbursements, and the application denied, with costs.